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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Matthew L. Seidl v. Greentree Mortgage Company, et al.

30 F.Supp.2d 1292, 1998 U.S. Dist. Lexis 17253 (D. Colo., October 16, 1998)

Defendant Greentree Mortgage Company ("Greentree") is engaged in the mortgage business. To promote its business, Greentree decided to send a "spam" advertisement to prospective customers. Greentree retained third party defendant Mark Van Keuren ("Van Keuren"), with whom it had no prior dealings, to mount this spam campaign. Greentree supplied Van Keuren with the text to be inserted in the body of the advertisement. It left to Van Keuren the selection of the recipients of the "spam", as well as the method of its distribution. Van Keuren created an e-mail containing defendant's designated text. He also placed the address "nobody@localhost.com" in the From and Reply To fields of the e-mail. The e-mail in question did not, however, originate from that location. Rather, "nobody@localhost.com" was a domain name owned by the plaintiff, Matthew Seidl ("Seidl").

The spam campaign had predictable results. Undeliverable e-mail was "bounced back" or returned to plaintiff's domain. Similarly, over 7000 recipients of defendant's spam registered their objections in reply e-mails also delivered to plaintiff's domain. This prevented plaintiff from using his computer for three days.

Plaintiff commenced suit, charging that by sending "spam" with a forged header, defendant Greentree had committed a number of wrongs, including trespass to chattel (Seidl's computer), as well as violations of the Colorado Deceptive Trade Practices Act, Colo. Rev. Stat. §6-1-105, and the Junk Fax Law, 47 U.S.C. §227.

To aid his cause, plaintiff created a web page for the express purpose of publicizing this lawsuit. On this site, plaintiff posted a "demand" letter written by his counsel to defendant Greentree, outlining the wrongs plaintiff alleged that Greentree committed and demanding redress therefor. Plaintiff also posted a Press Release about the action prepared by his counsel, as well as several articles about the suit first published by others.

Defendant counterclaimed, charging that plaintiff and his counsel, by posting this material on plaintiff's web site, had committed libel per se. Defendant also asserted RICO claims against plaintiff and his counsel as a result of their attempts to obtain redress for defendant's 'spam' campaign, and the reregistration of plaintiff's domain name "nobody@localhost.com."

The parties cross-moved for summary judgment. The court granted defendant Greentree's motion and dismissed the claims brought against it, on the grounds that Van Keuren was an independent contractor for whose acts Greentree could not vicariously be held liable. Said the court:

Mr. Van Keuren is not officer, director, employee or otherwise associated with Greentree. Greentree hired Mr. Van Keuren to perform a service but in no way directed the manner in which Mr. Van Keuren performed the service, including how he configured the "From" and "Reply to" path fields or the list of e-mail recipients. Thus, the undisputed facts establish an independent contractor relationship between Greentree and Mr. Van Keuren. Under Colorado law this does not give rise to liability for the acts of an independent contractor. Generally, a party is not liable for the torts of its independent contractors. (citations omitted).

Plaintiff's counsel sought to dismiss defendant's libel per se claims on the grounds that as an attorney, she has immunity from defamation claims for statements she makes "... during the course and as part of a judicial proceeding in which [she] participates as counsel if it has some relationship to the proceeding." The court found, however, that under prior precedent, this absolute privilege does not extend to statements given by a lawyer to the press concerning a pending lawsuit.

Nor, held the court, does this privilege extend to statements made by a lawyer via the Internet to the public at large. Said the court:

[A]n attorney who wishes to litigate her case in the press and via the Internet does so at her own risk. There is no absolute privilege under Colorado law for statements by an attorney or by a party made to the press or gratuitous statements posted on the Internet for the purpose of publicizing the case to persons who have no connection to the proceeding except as potentially interested observers.

 

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[T]he court notes that this case does not extend any new privilege to communications via the Internet. As discussed above, the court declines to extend the privilege for statements made in connection with a legal proceeding to a party's or a lawyer's statements made to a world-wide audience via the Internet. ... Communication via the Internet is not granted any special protection beyond that otherwise afforded to expression of opinion under Colorado law.

The court nonetheless dismissed defendant's claims, however, because it found that the allegedly defamatory statements at issue were non-actionable statements of opinion that, in most instances, also failed to be sufficiently plain on their face to be libelous per se. Finally, the court dismissed defendant's RICO claims.

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